The Problem of Context Revisited: The Massachusetts Example

Let me be the first to welcome Dean Chemerinsky to the fray.  Perhaps he will draw some fire while I reload (so to speak).

Bob Levy thinks a gun lobby strategy of using the “slippery slope” argument to keep gun owners in a perpetual state of anxiety about gun confiscation would be “bizarre and ineffective,” while David Kopel (a frequent contributor to the NRA’s First Freedom magazine) does his bizarre best to reflect that strategy by now claiming that the Brady Campaign is a fellow-traveler with those who want “a global ban on gun ownership for self-defense.”  I agree with Bob’s characterization of the strategy, particularly after Heller, but as Kopel’s postings show, it is what it is.

Neither of these writers has yet provided a reason to doubt my thesis that Heller is a paradox.  By giving gun control opponents the Supreme Court interpretation of the Second Amendment they wanted, the ruling may have made it easier to pass reasonable gun restrictions.  The paradox for gun control advocates like me is that the likely favorable effects of Heller on the gun control debate result from a ruling that is constitutionally indefensible.  At the risk of stepping back into the “old debate,” I return to the Heller majority opinion and to the argument that since the right guaranteed by the Second Amendment was “preexisting,” it can’t exclusively relate to the militia.

The argument is wrong if there exist examples, predating the Second Amendment, expressing a right of the people to be armed that relate entirely to military affairs and not to private self-defense.  One such example is the Massachusetts Constitution of 1780, but Kopel, and the Heller majority claim that its “right to keep and bear arms” provision guaranteed a right to gun ownership for “defense of hearth and home.”  Let me quote the entire provision, Article 17 of the Massachusetts Declaration of Rights:

The people have a right to keep and to bear arms for the common defence.  And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

Of course, the entire context in which the people’s “right to keep and to bear arms” appears in this provision demonstrates that the right refers only to service in the militia.  That the Heller majority would claim that this provision concerns private self-defense is proof of my original point, i.e. that the Court reached its predetermined conclusion only by ripping key phrases out of context.

The Heller Court’s assertion (echoed by Kopel), that the Massachusetts courts read this provision as relating to private self-defense, is a transparent distortion of the case law.  The controlling precedent here is Commonwealth v. Davis, 343 N.E.2d 847 (1976), in which the Supreme Judicial Court predictably held that Article 17 (the text of which has never changed since 1789) is directed at “service in a broadly based, organized militia,” not “to guaranteeing individual ownership or possession of weapons.”  In the upside-down world of the pro-gun constitutional theorist, however, this holding, the most recent ruling of the highest court in the jurisdiction on the issue, is less controlling than rulings of a century before.  Thus, the Heller majority and Kopel cite cases from 1825 and 1896 which, it turns out, suggest only that the Article 17 right does not protect those who may abuse firearms and that the legislature has the police power to ban public drilling with guns as a private military organization.

Recall that Kopel’s original argument was that because the right to keep and bear arms was “preexisting” it could not be exclusively militia-related, because there was no such preexisting right.  The Massachusetts provision alone defeats Kopel’s argument.

Also from this issue

Lead Essay

  • Robert A. Levy, Cato Institute senior fellow in constitutional studies, was co-counsel to Mr. Heller in District of Columbia v. Heller, last month’s controversial Supreme Court case in which Washington, D.C.’s ban on gun ownership was ruled unconstitutional on the basis of a Second Amendment individual right to possess firearms. But what does Heller really imply for the future of gun rights and gun control in America? In this month’s lead essay, Levy asks and gives his answers to the questions on the minds of gun lovers and gun controllers alike. What gun regulations will now be permissible? Will the Second Amendment be “incorporated”? Did the court engage in “judicial activism”? And what’s next for the on-the-ground politics of gun control in Washington, D.C. and beyond? Levy’s tightly reasoned essay marks the beginning of the new American debate about guns after Heller.

  • In his vigorous reply to Levy’s lead essay, Dennis A. Henigan, Vice President for Law and Policy at the Brady Center to Prevent Gun Violence, argues that Heller was “a prototypical misuse of judicial power to advance an ideological agenda” based on Justice Scalia’s “transparently inconsistent and manipulative” reading of historical texts. Nevertheless, Henigan argues that “the Heller decision should prove to be a sharp disappointment to the gun lobby and other Second Amendment extremists” because “the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban.” Moreover, Henigan argues, by decisively forbidding outright bans, Heller has defused the argument that gun control regulation sets us on a slippery slope to a society in which private citizens are not allowed to own guns. And therein lies the Heller paradox. By making Second Amendment rights clearer, the Court has made gun control easier.

  • In his reply, Second Amendment scholar David Kopel argues that the Constitution’s mention of “the” right to bear arms implies the right pre-existed the government, and that the point of the Second Amendment was to rule out its infringement. That pre-existing right, Kopel maintains, was “the right of having arms for personal defense,” and there is little evidence for a pre-existing militia right. Kopel agrees with Dennis Henigan that “the Heller decision … will probably not affect most gun laws in the United States, even assuming incorporation in the 14th Amendment,” but differs on the nature of “sensible” gun control, and offers a useful and informed discussion of current regulations. Regarding Washington, D.C.’s newly minted regulations, Kopel predicts that “the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.”

  • In his reply to Robert Levy’s lead essay, constitutional scholar Erwin Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” According to Chemerinsky, by ignoring a long history of precedent and throwing into question “countless other statutes and ordinances,” the decision “showed that conservative rhetoric about judicial restraint is a guise that is used to oppose rights [the conservatives on the Supreme Court] don’t like.” Chemerinsky further criticizes the court for failing to clarify the level of scrutiny to be applied to gun regulation, and suggests that it should be the “reasonableness” test. Heller will be incorporated, Chemerinsky predicts, but will unlikely affect the coming elections.